REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5786  OF 2002

Laxmidas Morarji (Dead ) by LRs. ……….. Appellants

Versus

Miss Behrose Darab Madan        …………..Respondent

WITH

CIVIL APPEAL NO. 5787  OF 2002

J U D G M E N T

H.L. Dattu, J.

1) These appeals are directed against the decision  of Bombay High Court in  

Writ Petition No.519 of 1987 dated 12.02.1998 and the order passed in  

Civil Application No.5701 of 2000 in Writ Petition No.519 of 1987 dated  

30.8.2001.  By the impugned order, the High Court, has dismissed both  

the writ petitions and also the civil application.

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2) The facts leading to these appeals are as under:-  

Mr. Salehbhai Alibhai  Rangwala was the owner of a building then  

known  as  Mohamedali  Mansion,  situated  at  241,  Princess  Street,  

Bombay.   The  Flat  No.  2-B  on  the  second  floor  of  the  building,  

(hereinafter referred to as  `the suit premises’) had been let out to one  

Dosabai, the brother of Ms. Dhanbai Batliwala, (hereinafter referred  

to as the `deceased-tenant’), on a monthly rent of Rs. 104.10 paisa.  

Dhanbai was staying with her brother in the suit premises.  After the  

death of her brother in the year 1953, Dhanbhai became the tenant of  

the  suit  premises  by  virtue  of  Section  5(11)(c)(i)  of  the  Bombay  

Rents, Hotel and Lodging Houses Rates Control Act, 1947 (`the Act’  

for short).  She expired on 17.12.1963.  It appears that the deceased  

tenant in her last will dated 24th April, 1959 had appointed the trustees  

and executors of her will. Sometime in the early part of the year 1965,  

the original owner had sent notice to the trustees and executors of the  

will of the deceased tenant to hand over the vacant possession of the  

suit premises and also to pay the arrears of rent alleged to be due from  

01.11.1964.   Since  the  trustees  and executors  of  the  will  failed  to  

vacate the suit premises, the original owner filed Suit No.310 of 1967  

before the Court of Small Causes at Bombay, against the trustees and  

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the respondent in this appeal, inter-alia seeking recovery of possession  

of the suit premises and for  payment of Rs.3018.90 paisa, being the  

arrears of rent for the period from 01.11.1964 to 31.03.1967.  In the  

suit  filed,  it  was  specifically  stated,  that,  the  defendant  No.  5  

(respondent) is not the tenant and has no legal and valid claim over  

the suit premises and therefore no notice was required to be given to  

her, however, she is arrayed as a party in the suit by way of caution  

and to avoid any technical objection in future.  It was also mentioned  

in the suit, that, the defendants 1 to 4 (trustees and executors of the  

will) have parted with the possession of the suit premises to defendant  

No.5, respondent in this appeal.

3) In the written statement filed, respondent apart from others, had stated  

that the court of small causes at Bombay has no jurisdiction to entertain  

the petition, since the landlord of the premises has not accepted her as a  

tenant of the suit premises; she has been adopted as a daughter by the  

deceased  tenant;  deceased  tenant  has  by  her  last  will,  bequeathed  the  

tenancy rights of the suit premises; she is the daughter of sister of the  

deceased tenant and was residing with the deceased tenant and, therefore,  

would fit  in to the definition of  a  tenant  as  envisaged under Section  

5(11)(c)(i) of the Act and, therefore, entitled to an eviction notice.

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4) The Small  Causes Court,  while  dismissing the suit  by its  order  dated  

02.07.1977, held that, the law of adoption is unknown to the Parsis and  

the defendant No.5 (respondent) has proved the fact that she was residing  

with the deceased tenant as a member of her family and as such she is  

entitled  to  claim  tenancy  rights  under  the  provisions  of  Section  

5(11)(c)(i) of the Act.

5) The original owner along with the predecessor of the present petitioners,  

being aggrieved by the judgment of the court of Small Causes at Bombay  

preferred  an  appeal  before  the  court  of  Small  Causes  at  Bombay  in  

Appeal No.74 of 1978.  The appellate court, on consideration of oral and  

documentary  evidence  held  that,  there  was  no  landlord  and  tenant  

relationship between executors of will and the petitioners and therefore  

the suit itself was not maintainable.  The respondent retains the tenancy  

rights as she was the adopted daughter of the deceased tenant under her  

will dated 2nd April, 1959 and was a member of her family residing with  

her at the time of her death.  It was also observed that bequeath of the  

tenancy  rights  either  of  the  residential  premises  or  of  shop  premises  

cannot  be  given  effect  to,  unless  the  concerned  person  satisfies  the  

requirement of Section 5(11)(c)(i)  of the Act and lastly the defendants 1  

to  4  have  not  produced  any  evidence  to  show  that  the  adoption  is  

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unknown to Parsis.  In view of the above findings the appellate court had  

dismissed the appeal.

6) Against  the  decision  of  the  Appellate  Court,  the  appellant  filed  writ  

petition before the High Court.  The learned single Judge dismissed the  

writ  petition,  being  of  the  opinion  that  there  is  no  perversity  in  the  

findings  and the  conclusions  reached by the  Trial  Court  and the  first  

appellate court and also has observed that no exception can be taken to  

the findings recorded by the trial court that the respondent would inherit  

the tenancy of the suit premises as she was residing with the tenant as a  

member of the family of the tenant.

7) Since the aforesaid order had been passed without hearing the learned  

counsel for the petitioner, an application for review came to be filed by  

the petitioners to review the order passed in the Writ Petition.  It was  

dismissed vide order dated 30.08.2001.

8) Appellants have preferred separate appeals before this Court, inter alia,  

questioning the order passed by the High Court in the writ petition and  

the civil application filed for review of the order passed in writ petition.

9) These appeals were heard in part on 15th April, 2009 and 30th July, 2009  

and when the matters were taken up for hearing on 6th August, 2009, the  

learned  counsel  for  the  respondent  stated  that  as  desired  by  the  

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respondent, he has given no objection to her and she wants to argue the  

matter in person. The respondent was present before the Court.  Instead  

of  arguing  the  matter,  she  sought  an  adjournment.   The  same  was  

declined,  since  the  appeals  were  pending on the  Board for  last  seven  

years  and  the  learned  counsel  for  the  appellant  had  closed  his  

submissions.

10)The learned senior counsel Mr. Rohington Nariman submitted, that, the  

respondent is not a member of the deceased tenant’s family and was not  

residing  with  the  deceased  at  the  time  of  her  death  and  therefore  

respondent cannot claim to be the tenant of the suit premises.  In aid of  

his  submission,  the  learned senior  counsel  invites  our  attention to  the  

definition of tenant under Bombay Rent Act.  The learned senior counsel  

has also taken us through the pleadings and the evidence on record to  

substantiate  that  the  respondent  cannot  claim  any  right,  much  less  

tenancy right, in the suit premises under the deceased tenant.

11)We do not think it necessary to discuss in detail the evidence adduced by  

the parties in view of the course we propose to adopt in deciding these  

appeals.

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12)The  primary  issue  which  falls  for  our  consideration  and  decision  is,  

whether the suit filed by the owner of the suit premises was maintainable  

before the Small Causes Court, Bombay.

13)The specific case of the plaintiff in the suit filed was that the respondent  

is not a tenant and has no legal  and valid claim over the suit premises  

and therefore no notice was required to be given to her.  However, she is  

arrayed as a party in the suit by way of caution and to avoid any technical  

objection in future.  It was also mentioned in the suit that the defendants  

1 to 4 (trustees and executors of the will) have parted with the possession  

of the suit premises to defendant No.5 (respondent in this appeal).  It was  

also mentioned that the suit is for recovery of the suit premises to which  

the provisions of Bombay Rent Control Act would apply.   

14)Apart from others, it was the defence of the defendant No.5 (respondent  

in  this  appeal),  that  the  Small  Causes  Court,  Bombay  does  not  have  

jurisdiction to try the suit, if the plaintiff were to assert that she is not the  

tenant of the suit premises.  

15)To decide the issues which have been raised for our consideration and  

decision,  it  is  necessary  to  notice  the  definition  of  “tenant”  and  

jurisdiction  of  courts  under  the  Bombay  Rents,  Hotel  and  Lodging  

Houses Rates Control Act, 1947.  Section 5(11) of the Act reads :  

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"(11)”tenant” means any person by whom or on whose  account rent is payable for any premises and includes,-

(a) xx                xx                 xx                xx          

[(aa) xx xx xx xx

(b) xx    xx xx xx

[(bb) xx           xx xx xx

[(bba) xx           xx xx xx

[(c)  (i)   in relation to any premises let for residence,  when  the  tenant  dies,  whether  the  death  has  occurred  before or after the commencement of the Bombay Rents,  Hotel  and Lodging House Rates Control  (Amendment)  Act,  1978,  any member  of the tenant’s  family residing  with the tenant  at the time of his death or, in the absence  of such member, any heir of the deceased tenant, as may  be decided in default of agreement by the Court.”

16)The definition of `tenant’ under the Act, means any person by whom or  

in whose account rent is payable for any premises. Section 5(11)(c) (i) of  

the Act, is too exhaustive to include any member of the tenant’s family  

residing  with  the  tenant  at  the  time  of  his  death.   There  are  two  

requirements  under  Section 5(11)  of  the  Act,  which  must  be  fulfilled  

before a person may be called `tenant’  under sub-clause(c);  firstly,  he  

must be  a member of the tenant’s family and secondly, he must have  

been residing with the tenant at the time of his death.  Besides, fulfilling  

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these  conditions,  he  must  have  agreed  upon  to  be  a  tenant  by  the  

members  of  the  tenant’s  family.   In  default  of  such  agreement,  the  

decision of the court shall be bindings on such members.  

17)Section  28  of  the  Act  provides  the  Small  Causes  Court  with  special  

jurisdiction to try the cases under the Act.  The Section is as under:

           “Jurisdiction of Courts

          (1) Notwithstanding anything contained in any law            and  notwithstanding that by reason of the amount of the claim or              for   any other reason, the suit or proceeding would not, but for              this provision, be within its jurisdiction.-

                (a)  in Greater Bombay, the Court of Small Causes,                  Bombay,

[(aa) in any area for which, a Court of Small Causes is  established  under  the  Provincial  Small  Causes  Courts  Act, 1887, such Court and]

(b) elsewhere,  the  Court  of  the  Civil  Judge  (Junior  Division)  having  jurisdiction  in  the  area  in  which  the  premises are situate or, if there is no such Civil Judge the  Court  of  the  Civil  Judge  (Senior  Division)  having  jurisdiction,  shall  have jurisdiction  to  entertain  and try  any suit or proceeding between a landlord and a tenant  relating  to  the  recovery  of  rent  or  possession  of  any  premises to which any of the provisions of this Part apply  [or  between  a  licensor  and  a  licensee  relating  to  the  recovery of the licence fee or charge] and to decide any  application  made  under  this  Act  and  to  deal  with  any  claim or  question arising out  of  this  Act  or  any of  its  provisions and [subject to the provisions of sub-section  (2)],  no  other  court  shall  have  jurisdiction  to  entertain  any such suit, proceedings, or application or to deal with  such claim or question.

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[(2) (a) Notwithstanding  anything  contained  in  clause(aa)  of  sub-section(1),  the  District  Court  may  at  any  stage  withdraw  any  such  suit,  proceeding  or  application  pending  in  a  Court  of  Small  Causes  established  for  any  area  under  the  Provincial  Small  Causes Courts Act, 1887 and transfer the same for trial or  disposal to the Court of the Civil Judge (Senior Division)  having ordinary jurisdiction in such area.]

(b) Where any suit, proceeding or application has been  withdrawn under clause(a), the Court of the Civil Judge  (Senior  Division)  which  thereafter  tries  such  suit,  proceedings  or  application,  as  the  case  may  be,  may  either re-try it or proceed from the stage at which it was  withdrawn.

(c) The  Court  of  the  Civil  Judge  trying  any  suit,  proceeding  or  application  withdrawn  under  clause  (a)  from the Court of Small Causes, shall,  for purposes of  such suit, proceeding or application, as the case may be,  be deemed to be the Court of Small Causes.] Explanation- In this Section “proceeding” does not  include an execution proceeding arising out of a decree  passed before the coming into operation of this Act.”

18)Section 28 of the Act begins with a non-obstante clause. By Section 28 of  

the Act, the legislature has designated certain courts to entertain and try  

any  suit  or  proceeding  between  a  landlord  and  a  tenant  relating  to  

recovery  of  rent  or  possession  of  any  premises  to  which  any  of  the  

provisions of this part apply and to decide any application made under  

Bombay Rent Act and to deal with any claim or question arising out of  

Bombay Rent Act or any of its provisions. The designated courts are, the  

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Court  of  Small  Causes  in  Greater  Bombay,  a  Court  of  Small  Causes  

established under the Provincial Small Causes Courts Act, 1887, in any  

area where such court is established and in other areas, the court of Civil  

Judge  (Junior  Division)  having  jurisdiction  in  the  area  in  which  the  

premises are situated or if there is no such Civil Judge, the court of Civil  

Judge (Senior Division) having ordinary jurisdiction.  

19)This Court in the case of Khem Chand Dayalji and Co. Vs. Mohammed  

Bhaichand (1969) 1 SCC 884, while discussing the provision prescribing  

the jurisdiction to the Small Causes Court, has noticed, that “by Section  

28  of  the  Act  certain  courts  were  designated  as  courts  of  exclusive  

jurisdiction to entertain and try suits and proceedings between a landlord  

and  tenant  relating  to  recovery  of  rent  or  possession  to  which  the  

provisions of the Act applied and also decide claims or questions arising  

under the Act.”

20)The Rent Control Act is a special enactment conferring certain special  

rights  and  imposing  certain  special  obligations  upon  landlords  and  

tenants.   The  Rent  Control  Act  imposes  restrictions  on  the  right  of  

landlord to evict his tenants on the grounds other than what is specified in  

the Statute.  This court in the case of Om Prakash Gupta Vs. Rattan Singh  

and Ors. (1964) 1 SCR 259, has observed, that, ordinarily, it is for the  

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civil courts to determine whether and if so, what jural relationship exists  

between  the  litigating  parties.  The  Tribunals  under  the  Act  being  

creatures  of  the Statute  have limited jurisdiction and have to function  

within the limits of the Statute creating them.  But within the provisions  

of the Act, they are Tribunals of exclusive jurisdiction and their orders  

are final and not liable to be questioned in collateral proceedings, like a  

separate  application in execution proceedings.   The Court has further  

observed, that, therefore, there is no substance in the contention that as  

soon as the appellant denies the relationship of landlord and tenant, the  

jurisdiction  of  the  authorities  under  the  Act  is  completely  ousted.   A  

landlord must be very ill-advised to start proceedings under the Act, if  

there is no relationship of landlord and tenant.  If a person in possession  

of  the  premises  is  not  a  tenant,  the  owner  of  the  premises  would  be  

entitled to institute a suit for ejectment in the civil courts, untrammeled  

by the provisions of the Act.  It is only when he happens to be the tenant  

of the premises in an urban area, the provisions of the Act are attracted.  

Mere  denial  of  relationship  of  landlord  and  tenant  cannot  oust  the  

jurisdiction unless it is specifically provided in the Statute.  If the Rent  

Controller finds that the opposite party is not a tenant of the landlord, he  

must dismiss the landlord’s application for eviction, but if he finds that  

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such a plea by the opposite party is not true and that the opposite party is  

a tenant of the landlord, then, if the ground of eviction is proved, he must  

order eviction of the tenant.

21)Section 28 of the Bombay Rent Act deals with the jurisdiction of the  

Courts, to decide on issues arising out of the Act.  In a suit relating to  

possession of the premises where the relationship of landlord and tenant  

admittedly subsists between the parties, jurisdiction to entertain and try  

such a suit is in the courts specified in Section 28.  All applications made  

under the Act are also to be entertained and disposed of by the courts  

specified in Section 28 and no other.  In all such suits or proceedings the  

courts  specified  in  Section  28 also  have  the  jurisdiction  to  decide all  

claims of questions arising out of the Act or any of its provisions. In the  

instant case, the suit premises is situate within the jurisdiction of Greater  

Bombay.  In view of Section 28 of the Act, the Court of Small Causes,  

Bombay,  will  have  jurisdiction.   The  appellants  have  filed  a  suit  for  

eviction.     The  suit  is  maintainable  provided  that  a  landlord-tenant  

relationship is established.  However, it is clear from the pleadings of the  

appellants  that  they  do not  consider  respondent  No.5 as  a  tenant.   In  

furtherance of this stand, the appellants have gone on to adduce evidence  

to prove that respondent does not qualify the conditions to be deemed as  

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tenant under the Bombay Rent Act.   In the light of the principles stated  

by  this  Court  in  Om  Prakash  Gupta’s  case  (1964)  1  SCC  259,  the  

inevitable  conclusion  is  that  Small  Causes  Court  at  Bombay  had  no  

jurisdiction to entertain the suit filed by the owners of the suit premises.  

22)The learned senior counsel for the appellant would submit  that the lis  

between  the  parties  is  pending  before  various  forums  from  last  four  

decades and even as of now the landlord of the premises is unable to get  

vacant possession of the suit premises and, therefore, we should exercise  

our power under Article 142 of the Constitution of India and direct the  

respondent to quit and deliver vacant possession of the suit premises to  

the landlord.  Reliance is placed on the decision of this court in the case  

of Dhanajaya Sharma vs. State of Haryana and Others, [(1995) 3 SCC  

757].  

23)Article 142 being in the nature of a residuary power based on equitable  

principles, the courts have thought it advisable to leave the powers under  

the article undefined.  The power under Article 142 of the Constitution is  

a Constitutional power and, hence, not restricted by statutory enactments.  

Though the Supreme Court would not pass any order under Article 142  

of the Constitution which would amount to supplanting substantive law  

applicable  or  ignoring  express  statutory  provisions  dealing  with  the  

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subject, at the same time these Constitutional powers cannot in any way,  

be controlled by any statutory provisions.   However,  it  is  to be made  

clear that this power cannot be used to supplant the law applicable to the  

case.   This  means  that  acting  under  Article  142,  the  Supreme Court  

cannot pass an order or grant relief, which is totally inconsistent or goes  

against  the  substantive  or  statutory  enactments  pertaining  to  the  case.  

The power is to be used sparingly in cases which cannot be effectively  

and appropriately tackled by the existing provisions of law or when the  

existing provisions of law cannot bring about complete justice between  

the parties. It would be useful at this stage to refer to the observations  

made  by this  Court  in  the  case  of  Teri  Oat  Estates  (P)  Ltd.  vs.  U.T.  

Chandigarh [(2004) 2 SCC 130], “sympathy or sentiment by itself cannot  

be  a  ground  for  passing  an  order  in  relation  to  where  the  appellants  

miserably  fail  to  establish  a  legal  right.   Despite  an  extraordinary  

constituted jurisdiction contained in Article 142 of the Constitution, the  

Supreme Court ordinarily would not pass an order which would be in  

contravention of a statutory provision.”

24)In  view of  the  aforesaid  settled  legal  principles,  it  is  not  possible  to  

accept the request of learned senior counsel for the appellant.   

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25)Since we are of the opinion that the Small Causes Court at Bombay had  

no jurisdiction to entertain the suit, we have not pronounced any opinion  

on the merits of the appellant’s case.   

26)As the appellants  were  bonafide  prosecuting  the  suit  before the  court  

which had no jurisdiction to entertain the same, we direct, that if along  

with the plaint,  an application under Section 14 of the Limitation Act,  

1963 is filed the time from the date of institution of the suit till this day  

shall be excluded in computing the period of limitation in filing the suit.  

It is further directed that if any such suit is filed, the same and consequent  

appeal/appeals/revision shall be disposed of within a period of one year  

from the date of its filing in view of the fact that unfortunately the present  

eviction matter remained pending for forty two long years.

27)Civil Appeal No. 5786 of 2002 is, accordingly, dismissed.  

28)In view of the dismissal of Civil Appeal No.5786 of 2002 by us today,  

Civil  Appeal  No.5787  of  2002  does  not  survive  and  is,  accordingly,  

dismissed. No order as to costs.   

                                                                                                                                                                           …………………………………J.                                                                                      [ B.N. AGRAWAL ]

                                                                                   …………………………………J.                                                                                      [ G.S. SINGHVI ]

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…………………………………J.  [ H.L. DATTU ]

New Delhi, September 18, 2009.

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